By Mark Savit
We have all been paying attention to the looming legislation intended to amend the Mine Safety and Health Act (HR 5663). By now, everyone has heard the arguments for and against the amendments so I don’t know that we need to rehash them here.
There is one provision of the bill that is particularly astonishing to me, and that is the new section on subpoenas. MSHA’s current subpoena authority is quite limited. MSHA is only authorized to issue subpoenas in connection with the holding of a public hearing which, in turn, can only be held after notice is published in the Federal Register. In contrast, OSHA has virtually unfettered subpoena authority, allowing it to subpoena witnesses and documents essentially at will, subject, to review by a U.S. District Court if the subpoenaed party refuses to comply. MSHA has long sought the same authority, claiming there’s no good reason why OSHA should have more subpoena authority than it has. Not surprisingly, I think differently. Here’s why.
Unlike MSHA, OSHA does not have the authority to enter a site without either permission or a court-issued administrative warrant. Because OSHA has no authority to enter without permission, they do not have automatic access to employees. Nor do they have the authority to access a facility and read bulletins and notices that might be posted internally. Further, since denying an OSHA inspector access to a site is not a violation of the Occupational Safety and Health Act (the OSH Act), denying the inspector access to documents on the site, other than those required to be kept by regulation, would not be a violation of the OSH Act. Of course, if OSHA gets a warrant, the scope of its authority on the site will be detailed in the warrant.
By contrast, MSHA has much greater power. In fact, MSHA has more authority than almost any other federal regulatory agency. MSHA inspectors are authorized to enter any mine site without permission, without consent and without a warrant. Although management has a right to accompany the inspector, MSHA has recently taken the position that it does not need to wait for a management representative to show up before MSHA begins the inspection. Further, while on the site, MSHA can and does talk with any miner MSHA comes into contact with and, unless the miner does not object to a management representative participating in the conversation, MSHA can talk with the miner confidentially.
In other words, in spite of its lack of subpoena authority, MSHA already has much of the power OSHA gains from its subpoena power.
What would be gained by granting MSHA subpoena power? In fact, not as much as most people assume. Unlike OSHA, criminal penalties under MSHA extend all the way down to front line management (and the bill would even expand that). Since there is always a theoretical possibility that criminal charges could arise from any inspection or investigation, any management person subpoenaed to testify would be able to assert his or her rights under the Fifth Amendment. As for rank and file workers who choose not to talk with MSHA voluntarily, one has to wonder about the value and credibility of anything they say if MSHA can only talk to them under threat of subpoena.
Of course, despite the threat of a citation for violating Section 103(a) of the Act (informally known as an “impeding” citation) operators are not bound to provide every document MSHA asks for on a moments notice. Nevertheless, MSHA gets virtually all of the documents it asks for anyway. MSHA gets them either because operators choose to provide them voluntarily or because they don’t want to go through the hassle of receiving an “impeding” citation and then having to challenge it, or sometimes, a bit of both.
Why then, one would ask, is this provision even included in the legislation? Does anyone really believe lack of subpoena power has been the primary factor in keeping MSHA from enforcing the Act more aggressively, or from finding the causes of accidents? Of course not.
While we can’t know exactly why without being in the head of the members and staff who drafted the language, a couple of explanations seem logical. First, just from the look of H.R. 5663, the concern is not with miner safety and health. Rather, the concern and interest here is about power. Today, MSHA cannot force any miner to speak with MSHA. Simply put, those who back the bill must believe that MSHA should have the authority to force miners to talk to MSHA. They believe that MSHA should have the power to force miners to speak, and that the power to punish and even to oversee the operations of our nation’s mines must be increased. In support, they offer no evidence that greater enforcement authority will make our mines any safer. They offer no explanation for why this additional authority is needed. They simply say since MSHA doesn’t now have it, MSHA should get it. Second, many in Congress seem frustrated that MSHA cannot always offer a definitive explanation for the causes of major accidents. They must believe it is always possible to pinpoint the exact cause of a catastrophic event in which much of the evidence is either destroyed or unreachable. They must have concluded that, if MSHA only had more power—more authority, those causes would suddenly be revealed. Tragically and unfortunately, that is simply not the case. We may never be able to determine the causes of many accidents with the precision that Congress seems to expect. No amount of additional authority will change that scientific reality.
MSHA currently has very few checks on its actions. It is essentially unaccountable for what it does and how it does it. Blindly increasing MSHA’s authority will not solve the problems MSHA admittedly does have. For example, MSHA has hired hundreds of new inspectors. While they have had training at the Academy, many are completely unfamiliar with the “real world” of mining. These new, very inexperienced and (in my judgment inadequately) trained inspectors are increasingly second guessing the judgment of very experienced miners regarding complex ventilation controls, the condition of highwalls and the efficacy of roof support systems. That is a very real problem, and we need to thoroughly analyze how that problem and many others can and should be addressed and, without emotionality, grandstanding or politics, go forward and do our best to solve them. We owe our miners at least that.
Savit is a partner with Patton Boggs LLP. He can be reached at 303-894-6117 or at msavit@pattonboggs.com.
